U.S. DEPARTMENT OF THE AIR FORCE 6TH SUPPORT GROUP MACDILL AIR FORCE BASE, FLORIDA and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 153

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR
FORCE

6TH SUPPORT GROUP

MACDILL AIR FORCE BASE,
FLORIDA

Respondent

and

NATIONAL FEDERATION OF FEDERAL

EMPLOYEES, LOCAL 153

Case No.AT-CA-60888

Charging
Party

NOTICE OF TRANSMITTAL OF
DECISION

The above-entitled case having been
heard before the undersigned Administrative Law Judge pursuant to
the Statute and the Rules and Regulations of the Authority, the
under-signed herein serves his Decision, a copy of which is
attached hereto, on all parties to the proceeding on this date and
this case is hereby transferred to the Federal Labor Relations
Authority pursuant to 5 C.F.R. § 2423.26(b).

Pursuant to section 2423.26(b) of
the Rules and Regulations, 5 C.F.R. § 2423.26(b), I am hereby
transferring the above case to the Authority. Enclosed are copies
of my Decision, the service sheet, and the transmittal form sent to
the parties. Also enclosed are the transcript, exhibits and any
briefs filed by the parties.

Enclosures

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR
FORCE

6TH SUPPORT GROUP

MACDILL AIR FORCE BASE,
FLORIDA

Respondent

and

NATIONAL FEDERATION OF FEDERAL

EMPLOYEES, LOCAL 153

Case No.AT-CA-60888

Charging
Party/Union

James T. Hedgepeth

Counsel for the
Respondent

Sam F. Sadler

Representative of the Charging
Party

Sherrod G. Patterson

Counsel for the General
Counsel, FLRA

Before: GARVIN LEE
OLIVER

Administrative Law
Judge

DECISION

Statement of the Case

The issues in this unfair labor
practice case are:

(1) whether the Respondent, through
a supervisor, violated section 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute (the Statute), 5 U.S.C.
§ 7116(a)(1), and (5), by requiring Sam F. Sadler, a Union
representative, to request official time and report to his worksite
before and after his use of official time, without giving the Union
prior notice and the opportunity to negotiate to the extent
required by the Statute; and (2) whether such action was taken in
retaliation for Sadler's protected activity in violation of section
7116(a)(1), (2) and (4) of the Statute.

For the reasons explained below, I
conclude that a preponderance of the evidence does not establish
the alleged violations of the Statute and recommend that the
complaint be dismissed.

A hearing was held in Tampa,
Florida. The parties were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The
Respondent and General Counsel filed helpful briefs. Based on the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of
law, and recommendations.

Findings of Fact

The Union and The
Respondent

The Union is the certified
exclusive representative of an appropriate unit of about 850
employees of the Respondent.

OSI Investigation

In December 1995, based upon an
allegation that Sam F. Sadler, Union chief steward, was signing out
from work indicating that he was going to perform Union duties when
he was not doing so, a criminal investigation was undertaken by the
Air Force Office of Special Investigations (OSI). This
investigation into alleged false statements and misuse of time by
Sadler covered the period from December 23, 1995 until August 7,
1996.

Official Time Procedure

In November 1995, Master Sergeant
(MSgt) Roy Shields, 6th Transportation Squadron, Surface Freight,
became Sadler's supervisor when Sadler was reassigned from civil
engineering. The practice for Sadler to secure official time to
perform representational activities when he otherwise would be in a
duty status was that he would normally advise Shields or his
designee, after reporting to work, that he needed official time and
would then write it on a sign-in, sign-out board, indicating the
times and the appropriate time allocation code. If Shields or his
designee were not in the office, Sadler would make the same
notations on the sign-in, sign-out board and proceed on official
time. Specific written or verbal supervisory approval of the
official time was not always required. If Sadler told MSgt Shields
that he needed to conduct Union business first thing the next
morning, Shields did not make Sadler first come in to his place of
employment at 7:30 a.m. Similarly, if Sadler were signed out for
official time to the end of the workday, he was not required to
return to the office before 4:30 p.m., but could go directly home.
Shields trusted that Sadler was performing Union business until
4:30 p.m. as he had represented.

This procedure for securing
official time was an informal arrangement between Shields and
Sadler and was not that unusual at the base. Sadler had
essentially the same arrangement with his previous supervisor in
civil engineering. Donald E. Bendever, Jr., president of the
Union, has essentially the same official time arrangement with his
supervisor in the 6th Services Squadron and at various other places
he has worked at MacDill. Bendever testified that the procedures in
the contract are considered formal "guidance," but informal
procedures are generally followed depending on the supervisor.
Bendever acknowledged that "you could have a hard-core supervisor
that says, 'This is the way it's going to be.'" Even in his
section "it's informal in our section . . . until somebody wants to
push it, you know. And then you have to walk a line." (Tr. at
74-76).

Procedures in Collective Bargaining
Agreement

The collective bargaining
agreement, approved March 21, 1996, provided, in part, as follows
concerning official time and the procedures for a Union
representative to receive official time:

SECTION 2.4.1 [STEWARDSHIP]. When
a Union Representative desires to be released from duty in order to
perform representational functions or contract administrative
activities, he/she shall first obtain permission from their
immediate supervisor or designated representative in the absence of
the immediate supervisor. The Union Representative shall indicate
to the immediate supervisor that:

a. he/she has a representational
matter to handle and type as required by AFR 177-372A, Volume
II,

b. where he/she desires to go,
and

c. the anticipated time of
departure and return to the work site. The Union Representative
will notify his/her immediate supervisor or designated
representative in the absence of his/her immediate supervisor, of
his/her return to the worksite.

. . . .

SECTION 2.5. OFFICIAL TIME. Union
Officials and Stewards shall be permitted reasonable time during
duty hours without loss of leave or pay to effectively represent
employees in accordance with this agreement. Union Representatives
will guard against the abuse of official time and shall restrict
such business to authorized periods.. .
.

Procedures During
Investigation

Once the criminal investigation was
initiated into Sadler's suspected misuse of official time, MSgt
Shields was instructed by OSI Special Agent David Brandt to report
Sadler's requests for official time to OSI, but not to change
anything while the investigation was being conducted so as not to
tip off Sadler to the investigation. In any event, Shields was not
the source of the misuse of leave allegation and saw no reason to
take corrective action at that time, the whole purpose of the
investigation being to determine whether there was an abuse of
official time on Sadler's part.

OSI Report&Sadler's Explanation

The OSI investigation was completed
on August 22, 1996. OSI reported to management that Sadler, on at
least four occasions, when he had signed out for official time
until 4:30 p.m., was observed leaving MacDill AFB between 2 and 3
p.m., and, on three such occasions, had arrived at his residence
shortly thereafter.

OSI interviewed Sadler regarding
these discrepancies as part of the investigation. Sadler told
Agent Brandt, in part, that, although he was not on flexitime, he
had worked eight hours and left work early to compensate for the
extra time he had spent before work and during lunch periods.
Sadler testified to the same effect at the
hearing.493766290
He acknowledged that he signed out on the sign-out board "to 1630
[4:30]", and did not put down the actual time he left the base. He
claimed that he did it that way because his fixed hours were 7:30
to 4:30 p.m. and "I had done my eight hours. That's
why."

Formal Procedures
Required

Shortly thereafter, on September 9,
1996, as a result of the completed investigation and a suggestion
by Special Agent Brandt that a more formal procedure should be
instituted to have employees certify their time for accountability
purposes, MSgt Shields required Sadler to report to his worksite
every morning at 7:30 a.m. If Sadler desired to be released for
representational duties, he had to receive specific verbal or
written permission from Shields or his designee "in accordance with
the contract." It was mandatory that Sadler advise Shields where he
was going and how he could be reached. If he should be on official
time at the end of the day, Sadler was required to report back to
Shields or his designee at 4:15 p.m. before being released at 4:30
p.m., the end of the workday.

Sadler's Protected
Activity

Prior to this action, Mr. Sadler
engaged in protected Union activity. On July 30, 1996, the Union,
on behalf of Sadler, filed a grievance with Msgt Shields over
Sadler's annual performance rating and, on August 15, 1996, Sadler,
on behalf of the Union, filed an unfair labor practice charge in
Case No. AT-CA-60810 against Respondent, alleging the unilateral
implementation of a change in conditions of employment by
Supervisor Siddall. In addition, Sadler has been chief steward of
the Union since 1985, serving as the primary Union official
responsible for arbitration hearings and unfair labor practices.
During calendar years 1995-96, he filed about 20-25 grievances or
unfair labor practice charges.305914812

Union Requests
Bargaining

On September 13, 1996, the Union
wrote to the Respondent regarding the change concerning Sadler's
official time. The Union requested to negotiate "the impact,
implementation, and/or substance of the proposed changes affecting
bargaining unit employees, specifically: Official Time request[s]
and the procedures. The change in the manner that a union official
secures official time or approval for official time." The Union
requested that the Respondent not implement any changes prior to
completion of negotiations and return to the status quo until
negotiations were completed.

No Response

The Respondent did not provide the
Union notice that it intended to change the procedures by which
Sadler requested and received official time nor did it respond to
the Union's September 13, 1996, request to negotiate.

Disciplinary Action

On November 7, 1996, the
Respondent, based on the OSI report, suspended Sadler from duty for
10 calendar days for unauthorized absences and deliberate
misrepresentation of his whereabouts on six occasions. The Union
filed a grievance regarding the suspension on December 10, 1996.
The grievance was taken to arbitration and the decision of the
arbitrator was pending as of the date of the hearing.

Discussion and
Conclusions

Statutory Rights

Section 7116(a)(1) of the Statute
provides that it shall be an unfair labor practice for an agency to
interfere with, restrain, or coerce any employee in the exercise of
any right provided by the Statute. Consistent with the findings
and purpose of Congress as set forth in section 7101, section 7102
of the Statute sets forth certain employee rights including the
right to form, join, or assist any labor organization freely and
without fear of penalty or reprisal and that each employee shall be
protected in the exercise of such right. Such right includes the
right to act for a labor organization in the capacity of a
representative. Section 7116(a)(2) of the Statute provides that it
shall be an unfair labor practice for an agency to encourage or
discourage membership in any labor organization by discrimination
in connection with hiring, tenure, promotion, or other conditions
of employment.

Section 7116(a)(4) provides that it
is also an unfair labor practice for an agency "to discipline or
otherwise discriminate against an employee because the employee has
filed a complaint, affidavit, or petition, or has given any
information or testimony under this chapter[.]"

The Authority's Analytical
Framework

Under the Authority's analytical
framework for resolving complaints of alleged discrimination under
section 7116(a)(2) of the Statute, the General Counsel has, at all
times, the overall burden to establish by a preponderance of the
evidence that: (1) the employee against whom the alleged
discriminatory action was taken was engaged in protected activity;
and (2) such activity was a motivating factor in the agency's
treatment of the employee in connection with hiring, tenure,
promotion, or other conditions of employment. As a threshold
matter, the General Counsel must offer sufficient evidence on these
two elements to withstand a motion to dismiss. However, satisfying
this threshold burden also establishes a violation of the Statute
only if the respondent offers no evidence that it took the disputed
action for legitimate reasons. Where the respondent offers
evidence that it took the disputed action for legitimate reasons,
it has the burden to establish, by a preponderance of the evidence,
as an affirmative defense that: (1) there was a legitimate
justification for its action; and (2) the same action would have
been taken even in the absence of protected activity.
United States Air Force Academy, Colorado
Springs, Colorado, 52 FLRA 874, 878-89
(1997);Federal Emergency Management
Agency, 52 FLRA 486, 490 n.2 (1996)
(FEMA);Letterkenny Army Depot,
35 FLRA 113 (1990) (Letterkenny).

The Authority applies the same
analytical framework ofLetterkennyand its progeny in resolving complaints alleging
discrimination under section 7116(a)(4) of the Statute as it does
in resolving discrimination complaints under section 7116(a)(2).
FEMA, 52 FLRA at
490;Department of Veterans Affairs
Medical Center, Brockton and West Roxbury,
Massachusetts, 43 FLRA 780, 781
(1991).

Protected Activity -
Motivation

The General Counsel satisfied the
threshold burden by showing that Sadler was engaged in protected
activity as a Union steward during the pertinent period. A
grievance was filed on his behalf on July 30, 1996, and he filed
an unfair labor practice charge on August 15, 1996. In addition,
the record reflects that Sadler has been an active Union official,
serving as chief steward of the Union since 1985 and being the
primary Union official responsible for filing and processing
grievances and unfair labor practices.

The General Counsel also satisfied
the threshold burden of showing that consideration of such activity
was a motivating factor in MSgt Shield's decision to change
Sadler's method of accounting for his official time. This was
shown by (1) the closeness in time between the protected activity
and management's decision,General
Services Administration, Region IX, San Francisco,
California, 40 FLRA 973, 982 (1991)
(GSA); and (2)
the fact that Sadler was an active and aggressive Union leader who
could have been considered a thorn in management's side,United States Forces Korea/Eighth United States
Army, 11 FLRA 434, 436 (1983).

Affirmative Defense
Established

Although the General Counsel
satisfied the threshold burden, the Respondent established an
affirmative defense for its actions. Although closeness in time
between an agency's employment decision and protected activity may
support an inference of illegal anti-union motivation, it is not
conclusive proof of a violation. GSA, 40 FLRA at 982.

Moreover, the Respondent established
that it had a legitimate, nondiscriminatory justification for its
actions. MSgt Shields required Mr. Sadler to report to work and
obtain permission and report back at the end of the day as a result
of the criminal investigation that gave MSgt Shields reasonable
grounds to believe that Sadler was signing out for official time,
but was leaving the base and going home instead. There was no
showing that MSgt Shields was aware of any contention during the
period that Sadler was coming in early and working through lunch to
complete his eight hours for pay purposes. Sadler's explanation
for signing out "until 4:30" because this was his normal quitting
time is unbelievable. If Sadler had always completed eight hours,
it is more likely that he would have advised his supervisor or
signed out at the true time he left the base on at least some of
these occasions. It is also noted that the accountability action
was suggested to MSgt Shields by Agent Brandt for all employees and
not just for Mr. Sadler.

Although the Statute protects
employees from discrimination because of the exercise of protected
activities, the exercise of those rights does not cloak an
individual with immunity from otherwise legitimate and justified
management actions.881510729Department of the Navy, Portsmouth Naval
Shipyard and Portsmouth FEMTC, 7 FLRA 766
(1982). The rule against terminating or in any way affecting "a
term or condition of an employee's tenure on the basis of his
participation in protected union activity[] . . . is not

. . . a prophylactic rule which
insulates an employee from any adverse action that an agency may
take; on the contrary, an agency may take adverse steps against an
employee for any valid reason apart from the employee's union
activities." Ray E. Midder v.
FLRA, No. 96-60371 (5th Cir. July 18,
1997).

It is concluded that the Respondent
has established, by a preponderance of the evidence, the
affirmative defense that it had a legitimate justification for its
action and it would have taken the same action even in the absence
of protected activity or previously-occurring protected activity.
Accordingly, there is no basis on which to conclude that the
Respondent violated section 7116(a)(1), (2) and (4), as alleged,
and it is recommended that the complaint in this respect be
dismissed.

Bargaining

The General Counsel contends that
the Respondent violated section 7116(a)(1) and (5) by changing the
procedures Mr. Sadler used for requesting and using official time
without notifying the Union and affording it the opportunity to
negotiate the substance of the change to an established past
practice. The General Counsel states that the matter is fully
negotiable even though Article 2 of the parties' agreement covers
official time. According to the General Counsel, "By establishing
and acting pursuant to the past practice, the parties acted in a
manner inconsistent with, and thereby modified, Article
2."

The Respondent contends that there
was no change in Mr. Sadler's conditions of employment. Sadler
always had to be either at his job or conducting Union business
during duty hours, and he was allowed the freedom to come and go
contingent upon his not abusing the trust his supervisor placed in
him. Once management believed he was abusing the trust, he had to
"sign-in" and did not have the same amount of freedom.

Statutory Provision

Section 7116(a)(5) of the Statute
makes it an unfair labor practice for an agency to refuse to
bargain in good faith with an exclusive representative of its
employees. As a result, an agency must provide the exclusive
representative with notice of proposed changes in conditions of
employment affecting unit employees and an opportunity to bargain
over those aspects of the changes that are negotiable.

The Authority's Analytical
Framework

In order to conclude that the
Respondent violated the Statute, it must be found that the
Respondent's action constituted a change in conditions of
employment. "The fact that the negotiated agreement addressed the
matter is not conclusive, if it is shown, in fact, that over a
period of time the parties had engaged in a practice . . . that
differed from the contractual procedure. If this showing is made,
and the practice satisfies the statutory requirements of section
7103(a)(14)[statutory definition of conditions of employment], it
is a condition of employment that cannot be unilaterally altered."
U.S. Department of the Navy, Naval
Avionics Center, Indianapolis, Indiana, 36
FLRA 567, 570 (1990).

Official Time A Condition of
Employment

The Authority has held that the use
of official time by Union officials for representational activities
is a condition of employment,U.S. Patent
and Trademark Office, 39 FLRA 1477, 1482
(1991), and that "[b]ecause section 7131(d) carves out an exception
to sections 7106(a)(2)(A) and (B), it permits negotiations over the
scheduling of official time, including the ability to use official
time without advance scheduling or permission from the supervisor,
absent emergency situations or other special circumstances,"National Treasury Employees Union and U.S.
Department of Commerce, Patent and Trademark
Office, 52 FLRA 1265, 1287 (1997).

No Change in Established
Practice

Prior to September 9, 1996, Sadler
was always required to be either at work or conducting authorized
Union business on official time during duty hours. He was not
always required to report to his worksite before and after his use
of official time and, in the absence of his supervisor or his
designee, was able to note official time on the sign-out board and
proceed on official time without securing specific verbal or
written permission. After his suspected abuse of official time,
Sadler was no longer trusted to be using official time during duty
hours as represented and was required to comply with the terms of
the March 21, 1996, collective bargaining agreement; that is, he
was required to report to his worksite at the beginning and end of
each workday, before and after his use of official time, and was
required to receive specific verbal or written permission from
Shields or his designee "in accordance with the contract." It was
mandatory that Sadler advise Shields where he was going and how he
could be reached.

I agree with the Respondent that
requiring Sadler to adhere to the strict terms of the collective
bargaining agreement and account for his duty hours in the face of
reasonable cause to suspect abuse was not a change of an
established practice. The informal procedure, which allowed Sadler
and other representatives more freedom, was dependent on
representatives being trusted and not causing supervisors reason to
believe that they were abusing the official time provisions during
duty hours. The collective bargaining agreement provided that
"Union Representatives will guard against the abuse of official
time and shall restrict such business to authorized periods." As
the Union president acknowledged, the procedures in the contract
were considered formal guidance even where informal procedures were
generally followed, depending on the supervisor, but even then
"[y]ou could have a hard-core supervisor that says,'This is the way
it's going to be.'" And in the Union president's section, where
the informal procedure was also followed, "[I]t's informal in our
section . . . until somebody wants to push it, you know. And then
you have to walk a line." (Tr. at 74-76). Similarly, Msgt Shields
allowed Sadler to follow the informal procedures for authorization
of official time contingent on having no reason to believe that
Sadler was abusing official time. When he had reason to believe
that Sadler was abusing official time, Sadler had to "walk the
line" and follow the strict authorization procedures for official
time provided in the parties' agreement. The reporting procedures
in the agreement were always present to provide "formal guidance"
when informal procedures could no longer be tolerated in cases of
suspected abuse.

No Violation

Since the General Counsel has not
established that this was a newly imposed requirement for a Union
representative reasonably suspected of abuse of official time, the
General Counsel has not established that the Respondent changed its
procedure. Cf.U.S. Department of Veterans Affairs,
Veterans Administration Medical Center, Memphis,
Tennessee, 42 FLRA 712 (1991) (requirement
that two employees cited for sick leave abuse present additional
medical evidence did not establish a change in a condition of
employment for employees in that status). Therefore, the
Respondent was under no obligation to notify the Union and bargain
before requiring Sadler to essentially adhere to the official time
procedures negotiated by the parties in their collective bargaining
agreement.

Moreover, the procedures for Sadler
and other Union officials and stewards to take official time are
already covered by Article 2, Section 2.4.1 and 2.5 of the
agreement. The express language of these provisions of the
agreement reasonably encompass the subject of bargaining requested
by the Union. Therefore, the Respondent had no duty to bargain
based on the terms of the existing negotiated agreement.

Union president Donald Bendever
supported Sadler's testimony to some extent by testifying that on
"several occasions" during the pertinent period Sadler went to the
wastewater treatment plant about 6 a.m. to perform Union work by
checking on the administration of an agreement concerning employees
at that location. No evidence was presented that any such early
hours were specifically reported to Shields or otherwise recorded
as being official time for Sadler.

Sadler has also had periodic
conflicts with management since 1985 allegedly because of his
failure to wear steel-toed boots on the job. According to Sadler,
he secured reversals on review, by an arbitrator and the Merit
Systems Protection Board, of a 1985 reprimand and a 1991
suspension, respectively, based on his doctor's orders and further
findings that the disciplinary actions were partially based on
retaliation for his Union activities.